DOGS v. RANCHER?

Part II

By Mary MacGregor and Brian Vickers

To be published in Beef in BC in mid-September 2013

In our first article, we explained that a rancher may be charged criminally, or sued civilly, ending up in court after killing a dog which has attacked (or presumably attacked) the rancher’s livestock.

We first review the situation of the rancher who is criminally charged. What does the Crown have to prove? What are the available defences? What is the standard of proof? What do the Crown and the rancher each have to prove?

We also look briefly at the situation of the rancher who is sued by the dog’s owner for damages for loss of the dog. This event is less common than a criminal charge.

How Can the Rancher Be Criminally Charged for Protecting Livestock?

In our imaginary case, a neighbour turns his dog loose. The dog runs off into the adjacent rancher’s pasture and begins to chase the rancher’s cattle. The rancher shoots and kills the dog. The dog owner is upset and complains to the police. The police investigate, the Crown looks at the evidence developed by the police, and decide to bring a criminal charge against the rancher.

The Offence and the Elements

The charges will be laid under section 445(1)(a) of the Criminal Code:

445. Injuring or endangering other animals

445. (1) Every one commits an offence who, wilfully and without lawful excuse,

(a) kills, maims, wounds, poisons or injures dogs….. that are kept for a lawful purpose….
Punishment

(2) Every one who commits an offence under subsection (1) is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction and liable to a fine not exceeding ten thousand dollars or to imprisonment for a term of not more than eighteen months or to both.

The Crown must prove the following elements for a conviction for killing or injuring a dog, absent a persuasive defence:

(a) the dog must have been kept for lawful purposes;

(b) the accused must have killed, maimed, wounded, poisoned, or injured the dog; and

(c) the accused must have intended to kill, maim, wound, poison, or injure the dog.

Is the Animal Being Kept for Lawful Purposes?

Section 445(1)(a) is designed to protect animals which are pets, owned by someone, rather than un-owned stray animals. Unless there is evidence that the animal is a stray, the animal will be considered to be domesticated and owned. Even if the animal is kept by the complainant and is under some form of control, the animal will be considered by the court to be kept for lawful purposes and entitled to the protection of the section.

In rare cases, the lawful purpose requirement can come into question. In R. v. S. (K.G.), a 2009 decision from Nunavut Court of Justice, Justice Sharkey defined "keeper" to be: "someone who provides the animal with a home, or who harbours the animal, providing it with care and food." But in R v. Deschamps (1978, Ontario), the judge ruled that merely feeding an animal each morning without harbouring it or providing any additional care or attention did not qualify as keeping the animal "for a lawful purpose".

Did the Accused Kill, Maim, Wound, Poison, or Injure the Dog ?

In order to obtain a conviction, the Crown must prove that the accused has committed the guilty act (the legalese is "actus reus"). Under section 445(1), the Crown must prove that it is the accused who killed, maimed, wounded, poisoned, or injured the dog
This element is rarely in dispute, as the accused usually admits his or her action to the police, or there may be one or more witnesses to the event.

It is important to remember that everyone has the right to remain silent. If police show up on your doorstep, consider speaking to your lawyer before making any statement to the police.
Did the Accused Intend to Kill, Maim, Wound, Poison, or Injure the Dog?

As with the actus reus, the Crown must also prove the essential guilty mind (legalese is "mens rea") element of the offence. Mens rea means that the accused intended the consequences of their action. In our example, this means when the accused shot the dog, he/she intended to kill or injure it.
Section 429(1) of the Criminal Code governs this concept. The section states:

Wilfully causing event to occur

Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed… wilfully to have caused the occurrence of the event.

This section allows the Crown to prove the required mental element of the offence by simply proving the guilty act. Thus neither the actus reus, nor the mens rea elements are generally in dispute in a case like our example.

Cases do indicate that it is possible to shoot and injure a dog without the required intention. In the Ontario case of R v Comber (1975), a war veteran with considerable rifle training shot into the snow to scare off two dogs. He testified that the shot must have ricocheted off something and struck the dog. Despite his training, the court ruled that the incident was an accident and therefore Mr. Comber lacked the "guilty mind" needed to convict him.

The Crown Establishes These Three Elements – Then What?

These three elements are usually easily proved by the Crown. Most dogs are owned by someone, and if there is credible evidence that the accused has shot the dog (as in our example), all three elements are proved.

Once the Crown has established all of the elements of the offence, the accused must prove that the action was justified by one of three possible defences.

Three Available Defences

Currently there are three defences to a criminal charge for injuring a dog: (1) the statutory defence; (2) the common law defence of property; and (3) the colour of right defence.

(In this article we have not dealt with the effect of any municipal bylaws, since they vary from municipality to municipality. Anyone considering their individual situation should check into any relevant municipal bylaws that may exist.)

1. The Statutory Defence

The statutory defence is in section 11.1 of the Livestock Act and states a person will be justified in killing a dog if two elements are satisfied: (1) the dog is running at large; and (2) it is attacking or viciously pursuing livestock.

A dog will be considered "running at large", defined in the Livestock Act if it is:

(a) trespassing (i.e on the rancher’s property without consent);

(b) not in direct and continuous charge of a person who is competent to control it; or

(c) not securely confined within an enclosure or securely fastened so that it is unable to roam.

To fall within the statutory defence, it is not enough to prove the dog is "running at large". The dog must also be either "attacking" or "viciously pursuing" "livestock".

i). Attacking or Viciously Pursuing

Neither "attacking" nor "viciously pursing" are defined by the Livestock Act, nor have we found definition in case law. Absent guidance from the courts, the terms should have their plain and ordinary meaning.

Our analysis is that a farmer will be justified in taking action against a dog that is either in the midst of an attack on livestock, or where an attack is imminent. In Tulloch v Melnychuk, (1998) Alberta, Justice Wilson said that a farmer need not "wait until the fangs are sinking into the flesh before exercising his rights" to take lawful action in defence of his livestock (although note the difference between Alberta and British Columbia statutes below!).

The exact nature of "imminent" is now in issue in R. v. Robinson, a Kamloops case in which the amount of time between the dog’s attack on livestock and the rancher’s action against the dog, is in question. We hope the decision, due July 29, 2013, will provide guidance for ranchers so that they can assess whether they are acting lawfully, or not, in taking action against a problem dog.

ii). What Is Included in "Livestock"

The Livestock Act defines livestock as: "cattle, goats, horses, sheep, swine, and game and includes any other animal designated by regulation". This is an important change from the 2004 legislation which defined livestock as an "animal that is tame or kept, or that has been or is being sufficiently tamed or kept, to serve some purpose for the use of people." The new legislation does not include poultry and if a dog is caught attacking or pursuing chickens (for example) and the farmer takes action against the dog, the Livestock Act defence will not be available to the rancher. (Again, municipal bylaws should be examined to see if they offer any assistance to the farmer.)

iii). How Does British Columbia’s Livestock Act Compare to Legislation in Other Provinces?

Compared to other provincial legislation, British Columbia’s Livestock Act favours the dog’s life over injury to livestock. In other jurisdictions, this balance is more neutral and can even heavily favour livestock over the life of a dog.

Alberta legislation talks about "pursuing, worrying, or destroying". This allows the livestock owner to take action against a dog that is doing something less than "attacking or viciously pursuing".

Saskatchewan's statute language is the same as British Columbia's, although we found no reported cases interpreting the Saskatchewan statute.

Manitoba's statute allows for destruction of a dog which is "worrying, injuring or killing" livestock.

Ontario is at the far end of the spectrum. Farmers there are entitled to kill any dog that is found killing or injuring livestock or poultry, or is"found straying at any time, and not under proper control, upon premises where livestock or poultry are habitually kept". The fact that the dog is not interacting with the livestock is of no relevance. However, in the 1995 decision of R v Angus, the Ontario courts interpreted "premises" narrowly to allow ranchers to shoot a dog only if it is in the "immediate premises" of livestock. This is a change from prior Ontario decisions that allowed ranchers to shoot a dog if it was trespassing, whether the livestock on the property were nearby, or not.

2. The Common Law Defence

The common law defence of property is set out in Williams v Gardiner (1978, British Columbia), and is more inclusive than the statutory defence. By expanding the definition of livestock to include any domesticated animal, a rancher may lawfully take action against a marauding dog if two propositions are established.

The first is, at the time of the shooting, the dog was either attacking the animals in question or, if left at large, would resume the attack. Attacking in this sense includes a dog that is about to attack. However, if the dog has finished the attack, and there is no reasonable possibility that it will resume the attack, the person is no longer justified in killing the dog.

The second proposition requires the act to be reasonable under the circumstances, that killing the dog is the only practicable means available to stop or prevent the attack. Other practicable means may include commanding the dog to stop, trying to scare it away through intimidation or warning shots, or capturing and removing the dog from the premises. This is different from the statutory defence, which does not require a measured response if the dog is running at large and is viciously pursuing livestock (as defined in the Livestock Act).

3. The "Colour of Right"

Defence
In addition to the statutory and the common law defences, a third defence is available to ranchers who are criminally charged. This defence is known as the "colour of right" defence and is found in section 429(2) of the Criminal Code.

Colour of right

(2) No person shall be convicted of an offence under sections 430 to 446 where he proves that he acted with legal justification or excuse and with colour of right.

The "colour of right" defence is afforded to any person who honestly and genuinely believes in a certain fact, that if true, would enable the person to fall within either the statutory or common law defence.
In R v Comber, (1975, Ontario), the case about the war veteran who fired a warning shot that inadvertently ricocheted and injured a dog, Mr. Comber put the dog out of its misery with a second shot. This second shot was successfully defended using the colour of right defence. Mr. Comber believed that the dog was in such a condition that it should be put out of its misery. Although the evidence later indicated the dog would have survived, Mr. Comber’s honest (although apparently mistaken) belief that the animal was in such a state, provided legal justification for his shooting and killing the dog.

The Standard and Onus of Proof

Proof Beyond a Reasonable Doubt

In criminal proceedings, section 11(d) of the Charter enshrines the presumption that an accused is innocent unless and until proven guilty. The presumption can only be rebutted upon the Crown proving the accused’s guilt beyond a reasonable doubt. On a charge of injuring or endangering animals contrary to section 445 of the Criminal Code, the Crown must prove beyond a reasonable doubt that the accused killed the dog (actus reus) and that the accused intended to kill or injure the dog (mens rea).

In Canada, the leading decision on the criminal standard of proof is R v Lifchus, (1997 Supreme Court of Canada). This case clarified that a reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence, or lack of evidence. The reasonable doubt standard does not require proof to an absolute certainty nor is it proof beyond any doubt. In R v Starr, (2003 Supreme Court of Canada), the court said that a reasonable doubt is closer to absolute certainty than the balance of probabilities (which is discussed below).

Although courts have refused to provide a specific definition of reasonable doubt applicable to all circumstances, the Crown has the heavy burden of proving its case beyond a reasonable doubt.

Onus Shifts to Defence to Prove Defence On a Balance of Probabilities

Once the Crown has proved the elements of the offence beyond a reasonable doubt, the onus shifts to the accused to prove its defence. The accused need only prove his or her actions were justified on a balance of probabilities, if the fact that the defence is trying to prove is more likely to be true than not true. Effectively, the standard of proof is satisfied if there is a greater than fifty percent chance that the proposition is true.

If the judge considers that the accused has proved its defence on the balance of probabilities, the judge is required to acquit the accused.

What About The Rancher Who Is Sued For the Value of the Dog?

A criminal charge results from an alleged wrong against the state, i.e. an action that is so wrong that it is a wrong against all Canadians collectively. A criminal conviction can result in a jail sentence or lesser punishment, or in a fine.

A civil claim results from a wrong against an individual for which the individual seeks compensation, for example when someone injured in a motor vehicle accident sues the owner and driver of the vehicle that caused the accident, or someone whose dog was killed by a rancher, as in our case, sues the rancher for the value of the dog. A loss in a civil case resulting from the facts in our example, means that the defendant rancher will have to pay the owner for the value of the dog, or for other damages such as veterinary bills and the like.

Since dogs are not normally enormously valuable, it is easy to understand why there are few civil claims resulting from the dog versus rancher conflict.

The burden of proof in a civil action is on a balance of probabilities. This means the dog owner must prove that it is more likely than not that the dog was injured or destroyed by the rancher. This is often admitted and is not usually in dispute.

The onus then shifts to the rancher to justify his or her actions. The defence is also tested on the balance of probabilities.

In a civil case, the only defences available are the statutory defence under the Livestock Act and the common law defence. The colour of right defence discussed above, is not available for the civil action.

Essentially, the consequences from a civil lawsuit are generally less severe, but easier to prove because the standard of proof is lower than that required for a criminal conviction.

Our final word on this topic will be a case comment when the decision in R. v. Robinson is published, scheduled for July 29, 2013.

Mary MacGregor is a Kamloops lawyer with Mary MacGregor Law Corporation (www.mmlc.ca). Brian Vickers is a third-year student in Thompson Rivers University Faculty of Law.